JET DRILLING (S) PTE LTD, NEW DELHI V. ASST DIT (IT) 3(1), MUMBAI

ITA 6439/MUM/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3489 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 20-10-2014
• Court: TRIBUNAL
• Department Lawyers: ALOK JOHRI
• Assessee Lawyers: NE ERAJ AGARWALA
• Keywords: Presumptive income
• Section: 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANJAY GARG , JM ./ ITA NO. 6 439 / MUM/20 1 4 ( / ASSESSMENT YEAR S : 20 11 - 2012 ) JET DR ILLING (S) PTE LIMITED, C/O NANGIA & CO., SUITE - 4A, PLAZA M - 6, JASOLA, NEW DELHI - 110025 VS. ADIT(INTERNATIONAL TAXATION) - 3(1), MUMBAI ./ ./ PAN/GIR NO. : A AB CJ 9895 N ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI NEERAJ AGARWALA /REVENUE BY : SHRI ALOK JOHRI / DATE OF HEARING : 0 7 /0 7 /2016 / DATE OF PRONOUNCEMENT 0 7 /07 /201 6 / O R D E R PER R.C.SHARMA (A.M) : TH IS IS AN A PPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), MUMBAI, FOR THE ASSESSMENT YEAR S 20 11 - 2012 . 2. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO ADDITION OF SERVICE TAX COLLECTED ON BEHALF OF THE GOVERNMENT WHILE COMPUTING INCOME U/S.44BB(1) OF THE I. T.ACT. 3. FACTS IN BRIEF ARE THAT THE ASSESSEE IS A NON - RESIDENT COMPANY, WHICH IS ENGAGED IN THE BUSINESS OF PROVIDING SERVICES AND FACILITIES IN CONNECTION WITH THE EXPLOITATION AND PRODUCTION OF MINERAL OIL IN INDIA. WHILE COMPUTING U/S.44B, THE AO INC LUDED SERVICES TAX SO COLLECTED BY THE ASSESSEE IN ITS GROSS RECEIPTS AND ACCORDINGLY COMPUTED THE INCOME. ITA NO. 6 439 /1 4 2 4. THE CONTENTION OF LD. AR WAS THAT SERVICE TAX IS NOT INCLUDIBLE IN THE GROSS RECEIPTS WHILE COMPUTING PROFIT U/S.44B OF THE I.T.ACT. THE ISSUE UN DER CONSIDERATION IS SQUARELY COVERED BY THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF MITCHELL DRILLING INTERNATIONAL (P) LTD. [2016] 380 ITR 130 (DELHI) , WHEREIN THE COURT HELD THAT FOR THE PURPOSE OF PRESUMPTIVE INCOME OF ASSESSEE UNDER SECTIO N 44BB, SERVICE TAX COLLECTED BY ASSESSEE WAS NOT BE INCLUDED IN THE GROSS RECEIPTS IN TERMS OF SECTION 44BB(2) R.W.S.44BB(1). THIS ORDER OF THE HONBLE DELHI HIGH COURT IS DATED 28 - 9 - 2015 AND IT HAS ALREADY CONSIDERED BY EARLIER DECISION OF HONBLE UTTARA KHAND HIGH COURT IN THE CASE OF DIT VS. SCHLUMBERGER ASIA SE RVICES LTD. [2009] 317 ITR 156 AS CITED BY LD. AR. 5. AFTER THE DECISION OF HONBLE DELHI HIGH COURT, ITAT MUMBAI BENCH IN THE CASE OF OCEANEERING INTERNATIONAL GMBH, ITA NO.1023/MUM/2014, ORDER DATED 6 - 11 - 2015 HEL D THAT SERVICES TAX IS NOT INCLUDIBLE WHILE COMPUTING TURN OVER U/S.44BB. 6. RESPECTFULLY FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF MITCHELL DRILLING INTERNATIONAL (P) LTD (SUPRA), WE DO NOT FIND ANY MERIT FOR INCLUSION O F SERVICE T AX IN THE TOTAL TURN OVER , WHILE COMPUTING INCOME U/S.44BB(1) OF I.T.ACT. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 0 7 /07 / 201 6 . SD/ - ( SANJAY GARG ) SD/ - ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 0 7 /07 /201 6 . . /PKM , . / PS ITA NO. 6 439 /1 4 3 / COPY OF THE ORDER FORWARDED TO : / BY ORDE R, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESP ONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//